Last week IMA-NA filed comments on EPA’s draft guidance for reporting chemical substances when manufactured or processed as nanoscale materials.The guidelines ultimately adopted are intended to implement the January 12, 2017 final rule.IMA-NA pointed out that certain industrial minerals, principally phyllosilicates, form sheets capable of meeting the reportable nanoscale material size range of 1-100 nm in at least one dimension.IMA-NA stressed that these materials are naturally occurring and their nanoscale sheet-forming capacity is inherent in the minerals themselves.While EPA couples the size criterion with a requirement that the material also must exhibit unique and novel properties, IMA-NA regards the latter criterion as vague and recommended that it be defined as discontinuous change in chemical reactivity, electrical or catalytic properties.

IMA-NA filed comments yesterday on EPA's CERCLA §108(b) notice of proposed rulemaking.This rulemaking would establish financial assurance requirements for Superfund liability at individual hardrock mining facilities.These financial assurances have the potential to be extremely costly . . . as in millions of dollars per industrial minerals facility.The IMA-NA comments are specific to the industrial minerals sector.IMA-NA also have been participating in a coalition of other hardrock mining trade associations, as well as trade associations representing industry sectors that EPA has indicated it likely next would subject to CERCLA §108(b) financial responsibility requirements (e.g., chemicals manufacturing, petroleum and coal products manufacturing, electrical power generation, transmission and distribution). The coalition comments also are attached for your information.

Yesterday evening, President Trump and his Administration released their proposed budget. The budget blueprint gives a good indication of the Administration's priorities and how it sees the roles of the various federal departments and agencies. The proposal would cut substantial funding across most agencies with only the Department for Homeland Security, Defense Department, and the Department of Veteran Affairs seeing increases in their budgets. The focus on military and security is in line with the Trump Administration's messaging. Cuts range from a 1% proposed cut in NASA's funding to a 31% reduction in the EPA's budget. Of interest in IMA-NA members, the Labor Department under the Trump Administration's proposed plan would see a budget reduction of 21% and the Department of Interior would see a 12% cut. The President's proposed budget gives Congress an the country an idea of priorities of the new Administration. Congress has authority over discretionary spending, but will need to keep this proposal in mind as they work on setting a budget as President Trump will have the opportunity to either veto or sign off on the final budget.

IMA-NA filed comments with the U.S. EPA to help establish the scope of risk evaluations under development for ten chemical substances designated for priority risk evaluation under the recently reformed Toxic Substances Control Act, specifically relative to “asbestos.”EPA asked the public for assistance in identifying information related to conditions of use (i.e., intended, known or reasonably foreseen uses) that would assist the Agency in identifying potential exposure scenarios (pathways, routes and populations).“Asbestos” is a generic term, referring to certain silicate minerals of a particular chemistry and crystalline growth habit, in contrast to certain common silicate minerals with the same chemical formula but a nonasbestiform growth habit.IMA-NA stressed adherence to good mineral science and urged EPA to focus of its risk evaluations for “asbestos” on the six regulated forms of commercial asbestos.Evidence that EPA placed in the record to support the scope of its risk evaluations misstated that certain products contained asbestos, when they in fact contained the nonasbestiform analog.

EPA issued a 120-day extension of the written comment period for its Notice of Proposed Rulemaking (NPRM) to establish financial responsibility requirements for classes of facilities in the hardrock mining industry under Section 108(b) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, also known as “Superfund”).Comments previously were due on or before March 13, 2017.Comments now are due on or before July 11, 2017.This is a significant rulemaking for the mining industry, potentially costing individual affected mining facilities millions of dollars in financial assurances.IMA-NA will file timely written comments on the proposed rule.

Yesterday, Congressman Mick Mulvaney (R-SC5) was sworn in as the new Director of the Office of Management and Budget (OMB). The Senate confirmed Mulvaney by a narrow margin of 51-49, largely along party lines. Senator John McCain was the only Republican to vote against the confirmation, a decision that was made due to Mulvaney's past opposition to budget increases for the military. Under the leadership of a fiscal hawk, OMB will play an important role in the Trump Administration's plans to rein in overly burdensome regulations. The Office of Information and Regulatory Affairs (OIRA), in OMB, which conducts reviews proposed regulations and evaluates the economic impacts, is expected to fulfill its role as a check on regulatory overreach more effectively in the new Administration. The confirmation of Mick Mulvaney also allows for OMB to begin reviewing agency budget proposals, a process that has been on hold while there was not a Director in place.

The Senate confirmed Scott Pruitt to head the Environmental Protection Agency (EPA) largely along party lines with a final vote of 52-46. Senators Heidi Heitkamp of North Dakota and Joe Manchin of West Virginia broke with the Democratic Party and voted for Pruitt while Susan Collins of Maine voted against his confirmation. Pruitt's confirmation is seen as a coup for the Administration and Republican Party who criticized the EPA loudly for regulatory overreach under the Obama Administration. Pruitt has a long history of legal challenges to various EPA regulations and his confirmation has been opposed by environmentalists who view him as an enemy to the stated goals of the EPA. For industry, Pruitt's confirmation is another signal that the regulatory environment in the United States will become substantially friendlier to business and traditional industrial developments.

As Congress continues using the Congressional Review Act (CRA) to revoke various regulations from the last year of Obama's Administration these two confirmations will be shaping the new Administration's regulatory agenda in its new direction.

EPA held a previously announced Webinar on its proposed rule on CERCLA (Superfund) Section 108(b) financial assurances for hardrock mining facilities.This Webinar specifically addressed the formula EPA proposes to use to calculate the financial assurances that would be required to be posted by the covered universe of hardrock mining facilities.That covered universe is somewhat nebulous.While few industrial minerals operations are specifically identified in the proposed rule, the scope of the proposal could be interpreted to cover industrial minerals facilities not specifically identified.As the cost of providing the proposed financial assurances almost certainly would total millions of dollars, it behooves industrial minerals operations to consider their potential liability if they are deemed to be part of the covered universe.IMA-NA intends to address the issue of potential coverage of industrial minerals operations in comments due to be filed by March 13, 2017.

The EPA Webinar PowerPoint presentation can be accessed by clicking here.

The proposed formula for calculating financial assurances is attached.

This week, the government released the Report of the Small Business Advocacy Review Panel (SBAR Panel) on the EPA's proposed rule: Financial Responsibility Requirements for the Hardrock Mining Industry under CERCLA § 108(b). The Panel reviewed the rule to assess the impact specifically on small mining operations and found the proposed rule to be lacking in provisions to protect small operations. The panel made recommendations for six areas in need of greater stakeholder input and adjustments to prevent small businesses from being unduly burdened by the rule. The Small Business Administration's (SBA) Office of Advocacy, "believes that the current approach could unnecessarily threaten the viability of small mines by use of these inflated estimates". In addition, the Office of Advocacy also questioned why the CERCLA financial assurance amounts are substantially higher than the State and FLMA's financial assurance programs. The results of the SBAR Panel echo many of IMA-NA's concerns and thoughts about the imprecision and flaws of the proposal as it currently stands.

EPA will host two Webinars in January on its proposed rule to mandate Financial Responsibility Requirements under CERCLA § 108(b) for Classes of Facilities in the Hardrock Mining Industry. The first Webinar will be held on Tuesday, January 10, at 2:00 - 3:00 p.m. (EST) and will give an overview of the proposed rule (to register, click here). The second Webinar will be held on Monday, January 30, at 2:00 - 3:00 p.m. (EST) and will focus on the financial responsibility formula included in the proposal (to register, click here). Section 108(b) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA, or Superfund) gives EPA the authority to require classes of facilities to establish and maintain evidence of financial responsibility. According to EPA, this financial responsibility demonstrates the owner or operator's ability to cover the costs associated with releases, or threatened releases, of hazardous substances from their facilities. Facilities subject to the proposed rule would be required to demonstrate financial responsibility using one or more of the following financial responsibility instruments: letter of credit; insurance; trust fund; or surety bond. IMA-NA opposes the proposed rule and maintains that all industrial minerals facilities should be excluded from this rulemaking.

On Tuesday, the EPA released its long-awaited final report evaluating the available scientific literature and data to assess the potential for activities in the hydraulic fracturing water cycle to impact the quality or quantity of drinking water resources. It also identified factors that affect the frequency and severity of those impacts. While EPA found scientific evidence that hydraulic fracturing can impact drinking water resources under some circumstances, it implicitly found that it did not in other circumstances. The final report deviates from the first version, which stated unequivocally that there was "no evidence that fracking systemically contaminates water". Thomas A. Burke, the E.P.A.’s science adviser, and deputy assistant administrator of the agency’s Office of Research and Development, addressed the change by stating EPA scientists couldn't quantitatively support the former conclusion. Mr. Burke did go on to highlighting the data gaps and uncertainties that existed in the study which limited its ability to fully assess the potential impacts on drinking water resources and could not fully characterize the severity of impacts. Additionally, EPA stated it could neither calculate nor estimate the national frequency of impacts on drinking water resources.

It's important to note that the report will contribute to the conversation surrounding the incoming Administration's stated policy to decrease regulations and increase investment in natural gas development and hydraulic fracturing.

Additional information on the 666-page final report can be accessed through this link.